Apple and the Constitution

While the right to privacy is at the heart of the FBI vs.Apple fight, possibly the more important legal issue is the power of the government to coerce a private entity to do its bidding.

Many people have compared the FBI’s insistence that the terrorist’s iPhone be unlocked to the government coming into your home. But that’s not a correct analogy: for one thing, the government can come into your home with a search warrant, which has been issued. But can the government go to the carpenter who built the home and demand that he remove the back wall and build a doorway in?

While congress approved rather far reaching – over-reaching would be a better term – anti-privacy laws in the wake of 9/11, it did not approve legislation that would have mandated so-called backdoors in smart phones, et al. The FBI is creatively interpreting an older law to assert that it has rights congress hasn’t granted.

The problem isn’t this specific case – the information on the iPhone is undoubtedly of little value, especially given the fact that the perpetrators are dead. And it’s not even the fact that once invented, the decrypt tool could easily be used elsewhere. The real problem is the precedence – if the government has the right in this case, undoubtedly deliberately chosen because public opinion will side with it, where will its rights stop?

They won’t. They may not break your iPhone tomorrow; they may not be in your house next week. 

But legal precedents last for a long time.

I read a silly story today to the effect that tech companies have “the upper hand” because they can always create something even harder to decrypt. One need only look at China or Russia to see how naïve that is. I’m not an Apple fanboy, but I’m with them on this.